State Bd. of Higher Ed. v. Synod of Or. of United Presbyterian Church

• Decision Date: 20 April 1966
• Citation: 82 Or.Adv.Sh. 625,413 P.2d 428,243 Or. 352
• Parties: State of Oregon, by and through its STATE BOARD OF HIGHER EDUCATION, composed of Charles R. Holloway, Jr., J. W. Forrester, Jr., Philip A. Joss, Ralph E. Purvine, Elizabeth H. Johnson, George H. Layman, John C. Merrifield, John W. Snider and Ray T. Yasui, Appellant, v. SYNOD OF OREGON OF the UNITED PRESBYTERIAN CHURCH in the U.S.A., an Oregon corporation, sometimes referred to as Synod of Oregon of the United Presbyterian Church in The United States of America, an Oregon corporation, Respondent. . On Defendant's Motion to Dismiss Appeal
• Court: Oregon Supreme Court

Page 428

413 P.2d 428

243 Or. 352

State of Oregon, by and through its STATE BOARD OF HIGHER EDUCATION, composed of Charles R. Holloway, Jr., J. W Forrester, Jr., Philip A. Joss, Ralph E. Purvine, Elizabeth H. Johnson, George H. Layman, John C. Merrifield, John W Snider and Ray T. Yasui, Appellant, v. SYNOD OF OREGON OF the UNITED PRESBYTERIAN CHURCH in the U.S.A., an Oregon corporation, sometimes referred to as Synod of Oregon of the United Presbyterian Church in The United States of America, an Oregon corporation, Respondent.

Supreme Court of Oregon, Department 2.

On Defendant's Motion to Dismiss Appeal

Submitted at Oral Argument April 7, 1966.

Decided April 20, 1966.

Phillips, Coughlin, Buell & Phillips, Jarvis B. Black and Warren Hastings, Portland, for the motion.

Robert Y. Thornton, Atty. Gen., Salem, and Wolf von Otterstedt, Asst. Atty. Gen., Eugene, contra.

Before PERRY, P.J., and SLOAN, HOLMAN, LUSK and SCHWAB, JJ.

PERRY, Justice.

The State of Oregon by and through the State Board of Higher Education brought this action to condemn certain real property of the defendant. Judgment was entered in favor of the defendant and the plaintiff appealed.

The defendant filed a motion to dismiss the appeal on the ground that the plaintiff had fully satisfied the judgment rendered in the circuit court and thereby waived its right of appeal. This motion was filed July 26, 1965, and denied September 28, 1965, with leave to renew upon oral argument. On oral argument April 7, 1966, the motion was renewed.

The record discloses that on April 29, 1964, the plaintiff filed its complaint alleging the reasonable market value of the property to be $62,000. On May 13, 1964, plaintiff filed its affidavit and motion for immediate possession of the real property. There was deposited into court by the plaintiff the sum of $62,000, and on May 13th the trial court entered its order granting the plaintiff immediate possession. The defendant filed its answer alleging the property to have a reasonable market value of $85,000. The issue of value was tried to the trial court on December 28, 1964; the trial court entered its findings of fact determining that the market value of the property was $73,000, and in its conclusions of law concluded that defendant was entitled to a judgment of $73,000, with interest at 6% On the balance due over and above the amount tendered into court, together with attorney's fees and its costs and disbursements.

On January 6, 1965, the trial court entered its final judgment in which is recited the fact 'that the plaintiff has paid the full amount of the verdict, together with interest on the excess of the verdict over the amount offered by plaintiff prior to the initiation of condemnation proceedings herein, together with attorney's fees and costs, into the registry of this court,' and thereupon decreed that the property, free and clear of all liens and incumbrances, should vest in the plaintiff, and that 'the balance of all moneys deposited in the registry of this court shall be paid over by the clerk * * * to the defendant.'

Whether or not the payment of the moneys into court by the plaintiff and thereupon obtaining defendant's interest in the property amounts to a waiver of the right to appeal depends upon the construction of the statutes granting the plaintiff the right to condemn.

ORS 351.190 grants to the Board of Higher Education the right of condemnation in accordance with the provisions of ORS 366.375 to 366.390.

ORS 366.375 to 366.390 are a portion of the statutes providing the procedure to be followed by the State Highway Commission in condemnation proceedings. Paragraphs (7) and (8) of ORS 366.380 are as follows:

'(7) Upon the payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property, rights, easements or interests in question to the state; and thereafter the same shall be the property of the state absolutely and may thereafter be used for any public purpose.'

'(8) Either party to the action may appeal from judgment in like manner and like effect as in ordinary cases, but the appeal shall not stay the proceedings so as to prevent the commission from taking such real property into possession and using it for the purposes for which it is being appropriated.'

For all intents and purposes, paragraph (7) of ORS 366.380 is identical with LOL, § 6866, and paragraph (8) is identical with LOL, § 6867. State Highway Com. v. Vella, 213 Or. 386, 390, 323 P.2d 941.

Sections 6866 and 6867 of Lords Oregon Laws in respect to the judgment to be entered after trial are discussed and construed in Oregon R. & Nav. Co. v. Taffe, 67 Or. 102, 134 P. 1024, 135 P. 332, 135 P. 515. In that case the jury returned a verdict against the condemnor Railroad company for a sum in excess of value placed thereon by the condemnor. The plaintiff condemnor tendered into court a decree reading in part as follows:

"It is therefore considered, ordered, and adjudged That on the payment of the said sum of $11,000, with interest thereon from June 25, 1910, and the costs and disbursements of the defendants the following described real property be appropriated and condemned to the use of the plaintiff." (Emphasis ours.) Oregon R. & Nav. Co. v. Taffe, supra, 67 Or. 102, 104, 134 P. 1024, 1025.

The defendant condemnee objected on the ground that LOL, § 6866, provided for but a single judgment and such judgment required that the moneys to satisfy the jury's award be paid into court by the condemnor. This the condemnor refused to do on the grounds that to do so would bar its right of appeal. The trial court refused to enter the judgment, dismissed the action and the condemnor appealed. This court, after stating that 'we get but little aid from the decisions of other states, for the reason that there is very little similarity between their statutes on the subject involved and ours,' 67 Or. 102, 107, 134 P. 1024, 1026, held that,...